Arakas v. Colvin, C/A No.: 4:14-cv-457-TER

• Decision Date: 23 September 2015
• Docket Number: C/A No.: 4:14-cv-457-TER
• Court: U.S. District Court — District of South Carolina
• Parties: Esin E. Arakas, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

Esin E. Arakas, Plaintiff, v. CAROLYN W. COLVIN,ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

C/A No.: 4:14-cv-457-TER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

September 23, 2015

ORDER

Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("the Act") to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the claim for disability insurance benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the court remands the Commissioner's decision.¹

I. RELEVANT BACKGROUND

A. Procedural History

On April 22, 2010, the Plaintiff filed an application for DIB alleging disability since November 11, 1996. The claim was denied initially and upon reconsideration. A hearing was held by an Administrative Law Judge ("ALJ") on June 15, 2012. At the hearing, Plaintiff, through her representative amended her alleged onset date of disability to January 1, 2010. The ALJ found in adecision dated August 28, 2012, that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Plaintiff filed this action on February 21, 2014, in the United States District Court for the District of South Carolina.

B. Plaintiff's Background and Medical History

1. Introductory Facts

Plaintiff was born on January 1, 1960 and was 50 years old at the time of the alleged onset. (Tr. 31). Plaintiff has past relevant work experience as a dining room manager, a real estate worker, and a caterer. Plaintiff alleges disability due to fibromyalgia with chronic pain, fatigue, and sleep disturbance; osteoarthritis; degenerative disc disease of the cervical spine; carpal tunnel syndrome; degenerative joint disease of both knees and depression and attention deficit hyperactivity disorder (ADHD). (Pl. Brief 2-4)

2. Medical Records and Opinions

a. Records before the ALJ

The parties have both provided a thorough review of the medical evidence before the ALJ in this case in their respective briefs. The Court dispenses with a lengthy recitation thereof here, and instead will note relevant facts and records.

b. Evidence Submitted to the Appeals Council

By correspondence dated November 30, 2012, Plaintiff's counsel submitted to the Appeals Council, inter alia, a November 15, 2012 "treating source statement" from Dr. Frank E. Harper and a post hearing brief for inclusion in the administrative record. (Tr. 229-34, 503).

C. The ALJ's Decision

In the decision of August 28, 2012, the ALJ found the following:

1. The claimant last met the insured status requirements of the Social Security Act through December 31, 2014.

2. The claimant has not engaged in substantial gainful activity since January 1, 2010, the amended alleged onset date (20 CFR 404.1571, et seq.).

3. The claimant has the following severe impairment: fibromyalgia (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). Specifically, the claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for up to 6 hours each in an 8-hour workday. The claimant can frequently push and pull with the upper extremities. She can occasionally climb stairs but she can never climb ladders. The claimant can frequently balance and occasionally stoop, crouch, kneel and crawl. Additionally, she can perform frequent fine and gross manipulation and fingering skills. She can perform only occasional overhead reaching with the right upper extremity. The claimant must avoid extreme cold, unprotected heights and hazards.

6. The claimant is unable to perform any past relevant work. (20 CFR 404.1565).

7. The claimant was born on January 1, 1960 and was 50 years old, which is defined as an individual closely approaching advanced age, on the amended alleged disability onset date.

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant was not under a disability, as defined in the Social Security Act, from January 1, 2010, through the date of this decision. (20 CFR 404.1520(g)).

(Tr. 22-32).

D. Appeals Council Review

The Appeals Council denied Plaintiff's request for review in a notice dated December 23, 2013. (Tr. 1-6). It indicated that it considered the reasons that Plaintiff disagreed with the ALJ's decision and the additional evidence Plaintiff submitted. (Tr. at 1). It determined that the new evidence did not provide a basis for changing the ALJ's decision. Id. at 1-2.

II. DISCUSSION

The Plaintiff argues that the ALJ erred in her decision, and, inter alia, that remand in this case is warranted pursuant to Meyer v. Astrue, 662 F.2d 700 (4^th Cir. 2011). Specifically, Plaintiff raises the following arguments in her brief, quoted verbatim:

I. New and material opinion evidence from the treating rheumatologist Dr. Harper which was submitted to the Appeals Council requires reversal and remand for administrative findings of fact .

II. The ALJ committed reversible error by giving "little weight" to the opinion of the treating rheumatologist Dr. Harper by failing to follow controlling legal standards for the evaluation of medical opinions, and for the evaluation of fibromyalgia under SSR 12-2p.

III. The ALJ committed reversible error by finding that fibromyalgia was the only severe impairment at step two of the sequential evaluation and by failing to consider the combined effects of all the impairments.

(Plaintiff's brief).

The Commissioner argues that the ALJ's decision was based on substantial evidence, that the ALJ properly assessed Dr. Harper's medical opinion of record, and that remand under Meyer is not required in this case.

A. LEGAL FRAMEWORK

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (2) whether he has a severe impairment; (3) whether that impairment meets orequals an impairment included in the Listings;² (4) whether such impairment prevents claimant from performing PRW;³ and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d) (5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfythat burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir.2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir.1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [ ] made...